Reader A. Wright Burke has a nifty turn of phrase. Who can forget his nitcaps™. (“Initial capitals,” guys!)
He recently came up with “naked facts.” Nice phrase. But I suggest that the concept it stands for doesn’t work. It’s instructive to consider why that’s the case.
A naked fact is a statement of fact that isn’t preceded by a reference to (1) the one or more parties making the statement of fact and (2) a verb, namely states or acknowledges, the two MSCD-sanctioned verbs to use for language of declaration. (If you’re wondering about states, read this article.)
Naked facts won’t work because you have to know who is making each statement of fact. But AWB says in this comment that that doesn’t apply when both parties are making a statement of fact:
More generally, it seems to me that by virtue of a lead-in, naked statements of fact in the body *function* as joint statements of fact, much as in recitals. This would cover the words “Acme has paid the purchase price to Widgetco”: its a joint statement of past fact. If you don’t like the invocation of the lead-in, then let them be joint statements of fact by virtue of their context in a signed agreement of the parties. If the parties aren’t stating these facts, who is?
I don’t agree. If both parties are making a statement of fact, it’s because they’re both acknowledging something, usually some external fact (The parties acknowledge that on 19 November 2015 the price of unobtanium exceeded $13,665 per troy ounce). I don’t see that knowing who is making such a statement of fact is any less relevant because both parties are making the statement. And if you don’t make it explicit, I don’t see that there’s any basis for assuming that both parties are making the statement.
But it’s an interesting idea, so I’m grateful to AWB for airing it. And I’m always prepared to be mistaken.
My view is that any any sentence in the body of the contract, factual or otherwise, that lacks an explicit declarant and an explicit declaring verb is to be read as a sentence the parties are speaking jointly.
Examples:
‘The Employee is an employee of RMA’;
‘The term of this agreement ends at noon on December 31, 2020’;
‘In this agreement, “duty” means “obligation'”.
I already hear you pouncing: ‘THOSE AREN’T EXTERNAL FACTS LIKE THE PRICE OF URANIUM!’ (That’s a caricature; you never shout.)
I concede that, but how is it that you ‘don’t see that there’s any basis for assuming that both parties are making’ unattributed factual statements, but you somehow see a basis for assuming that both parties are making every other sentence in the contract not specifically attributed to anyone?
On a blog, no one can hear you scream.
None of your examples is a statement of fact.
Language of policy can be “naked” because it’s a rule that the parties have agreed to. And a rule necessarily applies to the one or more parties who fall within the scope of the rule.
By contrast, what matters in a statement of fact is who the speaker is. That’s a big semantic difference. You’re asking for readers to assume that all parties are making a statement of fact unless that’s clearly not the case. There’s no basis for expecting a reader to know that.
Ken Adams, you are a hard case. Based on how hard it is to persuade you of anything, I wager you’re the type who sits at the comedy club and when the comic tells a good one, you don’t laugh, you just nod gravely and say, ‘That’s funny, that’s funny’.
Down to specifics:
1/ ‘The Employee is an employee of RMA’ is too a fact! (Look at this, you’re driving me to exclamation points.)
2/ If language of policy can be naked ‘because it’s a rule that the parties have agreed to’, then everything in the contract not otherwise tagged can also be naked because it’s something the parties have agreed to. How can a reader not be expected to know that a contract states, sentence by sentence, what the parties have agreed to?
3/ You say ‘what matters in a statement of fact is who the speaker is’. Wrong. What matters in a statement of fact is not who says it, but what happens if the statement is false.
Take this example: ‘Widgetco states that the Widgets are new, not used. If any Widget delivered is used, Widgetco will replace it with a new one promptly upon notice from Acme’.
Now change the first word to ‘Acme’: ‘Acme states that the Widgets are new, not used. If any Widget delivered is used, Widgetco will replace it with a new one promptly upon notice from Acme’. Same outcome if a widget’s not new.
Now get rid of the declarant and declaring verb and state the fact ‘nakedly’: ‘The Widgets are new, not used. If any Widget delivered is used, Widgetco will replace it with a new one promptly upon notice from Acme’. Same outcome if a widget’s not new.
Now get rid of the statement of fact altogether, leaving only the conditional obligation: ‘If any Widget delivered is used, Widgetco will replace it with a new one promptly upon notice from Acme’. Same outcome if a widget’s not new.
As you say when you’re Dr. Jekyll, a drafter shouldn’t rely on the manner of stating a fact to dictate the remedy or other consequence of the fact’s falsity. Let the contract set out who has what duty if stated facts turn out to be false. Stating it as a party’s conditional obligation is usually the shortest way home. Good-bye, statements of fact, naked or nattily dressed.
Years ago, when I was involved in preparing expert testimony, we used two-person teams to proofread the text. One person read the most recent version of the text out loud while the second person checked what she heard against the copy marked with corrections to make sure the corrections had be made, checking off each as completed. The reader spoke the words, plus all forms, punctuation and the spelling of unusual words or phrases. The terms we used for capitalization, drawn from standard editorial usage, were “allcaps” and “initcap.” So, “No. 2 diesel” would be spoken as “initcap n o peer space 2 diesel.” Why invent a new word when there’s an existing term of art?
That sounds like an enthralling process! I suspect that doesn’t happen much anymore.
Regarding your point, I guess the question is whether initcap is used sufficiently widely for it to be considered a term of art. And even if it is, perhaps the fact that losing the initial i makes the word roll off the tongue more easily makes that change one worth considering. But you won’t find me going to the barricades to fight over this!
Sorry, I only just now came across your comment.
Seems I once again reinvented the wheel. Can I at least get IP rights on ditching the initial ‘i’ of ‘initcap’?
Out of curiosity, does the practice you describe include the use of ‘allcap’ and ‘initcap’ as verbs, like this:
1/ ‘Allcap the first three words of every paragraph of the story’ and
2/ ‘Don’t initcap the officers’ titles — it’s little-t treasurer’?